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Presented by: International Commission of Jurists, Amnesty International, and the Center for Human Rights and Global Justice at New York University School of Law

Speakers: Sam Zia-Zarifi, Secretary General, International Commission of Jurists; Róisín Pillay, European and CIS Programme Director, International Commission of Jurists; Margaret Satterthwaite, Professor of Clinical Law, NYU School of Law

Speakers: David Hickton, Founding Director, Pitt Cyber, Former US Attorney, Western District of Pennsylvania; Paul Cohen, Founding Dean and Professor, University of Pittsburgh, School of Computing and Information, Former Program Manager, Information Innovation Office, DARPA; Harvey Rishikof, Chair, Advisory Committee, ABA Standing Committee on Law and National Security, Former Dean of Faculty, National War College; Ian Wallace, Co-Director, New America’s Cybersecurity Initiative, Senior Fellow, International Security Program

Editors’ note. This piece is a preview of a new article by the authors published in the Spring 2015 issue of Ethics and International Affairs.

Lethal drones are being used unilaterally by states, without sufficient transparency or accountability. This situation will only get worse if no international regime for regulating their use is created. Therefore, we are proposing the development of a Drone Accountability Regime (DAR) that is flexible enough to meet new challenges and opportunities. Here we hone in on the essential features of our proposal, assuming that lethal drone use entails special risks that require new regulation.

The key risks of lethal drone use are three: violating sovereignty, overuse of the military option, and making it more difficult to detect violations of the principle of nondiscrimination. Although we do not propose banning lethal drones — almost certainly infeasible in any case — we regard these risks as serious enough to justify a Drone Accountability Regime.

A formal treaty involving the major powers to institutionalize a legally binding DAR also seems clearly infeasible politically at this time. We therefore propose an informal regime that could be gradually strengthened over time. The clearest analog, discussed in our article, is the Missile Technology Control Regime (MTCR), which was established in 1987 and now has 34 members.

In our proposal, the Drone Accountability Regime would be more ambitious than the MTCR, although its strength would be negotiable. Establishing an institutionalized regime, even with weak rules, would be a genuine step forward, providing a basis for subsequent strengthening.

Under our proposal for a DAR, an Assembly of States would meet on a regular basis to consider issues brought before it, while nonstate and transnational groups would have a voice in a Transnational Council. The Assembly of States would be crucial to the DAR, since state authority would be necessary to make its provisions effective. The Transnational Council would be equally important — and would include such organizations as the International Committee of the Red Cross — since civil society must be mobilized for drone use to be effectively regulated. The DAR would institutionalize rules governing the use of drones, covering non-state as well as state actors. Our hope is that states would encounter reputational costs for flagrantly flouting its provisions and would therefore have incentives to conform, at least to some extent, to them.

Democratic states would have to initiate this regime and would be the most likely to join at the outset. Civil society organizations, based in these states, would be crucial for publicizing its activities and insisting that it not be captured by national security bureaucracies. The Drone Accountability Regime would be designed to reinforce norms of accountability — holding states, non-state actors, and the operators themselves accountable for their behavior. Hence our proposal includes an insistence that there be an Ombudsperson to investigate complaints and serve as an agent of accountability. A regime would be empty without some means of monitoring adherence to it and, in particular, investigating actual instances of drone use. Hence the role of the Ombudsperson in the DAR would be crucial.

In general terms,our proposal is based on three principles: a plurality of initiatives, multiple arrangements to ensure transparency, and mobilization for dynamic accountability. The provision for both an Assembly of States and a Transnational Council ensures openness to a plurality of initiatives; the rules and the Ombudsperson are designed to provide multiple arrangements for transparency; and involvement of civil society actors is meant to generate mobilization for dynamic accountability. A key idea of the proposal is that, taken together, these multiple arrangements will ensure that individual states are held accountable for making their drone-users accountable.

We are calling for procedures to be developed in support of two types of accountability provisions: ex ante and ex post.

Ex ante accountability entails prior authorization, when feasible, for lethal drone strikes. Since prior authorization will often be infeasible, we also propose some general public measures that drone-using states must use to bolster transparency. Notably, if no legitimate political authority exists in a territory in which drone strikes are to occur, the drone-using state must explain publicly ex ante why it is justified in overcoming a general presumption against the use of force without state consent.

In addition, we propose specific ex post accountability provisions: requiring a plausible public rationale for lethal drone strikes within two weeks of the strike; explanation of reasons for the strike; and submission to investigations by the Ombudsperson. Indeed, systematic ex post monitoring by the Ombudsperson is at the heart of our proposal for genuine accountability.

To summarize, the proposed Drone Accountability Regime would include an Assembly of States, a Transnational Council, and an Ombudsperson, with these institutions linked to national supervisory bodies and those in direct command of drone operators. Together, they provide systematically for provisions for both ex ante and ex post accountability.

A Drone Accountability Regime will be difficult to institute, but if established even in a moderately effective way, it will be worthwhile. Creating a DAR must therefore be a pressing topic for policy discussions in national governments and at the United Nations. At the same time, civil society movements should take up the task of specifying realistic proposals for a Drone Accountability Regime, which would constitute a valuable, if small, step toward a better-institutionalized world order.

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

PRESIDENT TRUMP’S TORTURE ORDER

A draft executive order to review bringing back waterboarding and the CIA secret prisons known as “black sites” and characterizing a 2016 law barring torture as “a significant statutory barrier” is not a White House document, press secretary Sean Spicer insisted yesterday, Katie Bo Williams reporting at the Hill.… continue »